R v Versteeg

[2020] ACTSC 273

Supreme Court of the ACT|2020-09-25|Before: Burns J

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Supreme Court of the ACT

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2020-09-25

Before

Burns J

Catchwords

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE –
Judgment and Punishment – Sentence – sexual intercourse without
consent – act of indecency without consent – pleas of guilty
– disputed facts hearing for sexual intercourse without

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Original judgment source is linked above.

Catchwords

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE –Judgment and Punishment – Sentence – sexual intercourse withoutconsent – act of indecency without consent – pleas of guilty– disputed facts hearing for sexual intercourse withoutconsent charge– moral culpability – relevance of offender’s ADHD andcannabis use at time of offending –consideration of Intensive CorrectionOrder – consideration of general and specific deterrence – relevanceof offender’sminimisation of offending

Judgment

Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title: R v Versteeg (No 2)

Citation: [2020] ACTSC 273

Hearing Date: 11 September 2020

Decision Date: 25 September 2020

Before: Burns J

Decision: See [56]–[60]

Catchwords: CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – sexual intercourse without consent – act of indecency without consent – pleas of guilty – disputed facts hearing for sexual intercourse without consent charge – moral culpability – relevance of offender’s ADHD and cannabis use at time of offending – consideration of Intensive Correction Order – consideration of general and specific deterrence – relevance of offender’s minimisation of offending

Jake Versteeg, on 10 June 2020 you entered pleas of guilty to one charge of engaging in sexual intercourse without consent contrary to s 54(1) of the Crimes Act 1900 (ACT) (the Crimes Act) and one charge of committing an act of indecency without consent contrary to s 60(1) of the Crimes Act.
The maximum penalty for the offence of engaging in sexual intercourse without consent is 12 years' imprisonment. The maximum penalty for committing an act of indecency without consent is seven years' imprisonment.
Each of these offences occurred on 3 June 2018. You were originally charged with these two offences in the ACT Magistrates Court on 1 July 2019, having been arrested by police on 30 June 2019. You entered pleas of not guilty in the ACT Magistrates Court and on 28 November 2019 you were committed for trial to this Court.
On 30 January 2020, the Crown filed an indictment containing one charge of engaging in sexual intercourse without consent and two charges of committing an act of indecency without consent. On 24 February 2020, Murrell CJ listed the charges for trial commencing in the week of 8 June 2020. The trial was listed to commence before me on 9 June 2020 as a judge alone trial.
Negotiations took place between your counsel and counsel for the Crown on the morning of 9 June 2020, following which I was advised that you would plead guilty to two charges on the indictment and that there would be a disputed facts hearing. On 10 June 2020 you were arraigned on Counts 1 and 3 on the indictment, being charges of engaging in sexual intercourse without consent and committing an act of indecency without consent respectively. You entered pleas of guilty.
After hearing evidence on 10 and 11 June 2020, I adjourned the matter until 8 July 2020. On that date, I handed down my findings of fact and my associated reasons. At the request of your counsel, I ordered that you be assessed for an Intensive Correction Order. The Crown did not oppose that Assessment. I note that when I ordered the Assessment I indicated that I had not yet heard submissions about whether a disposition by way of Intensive Correction Order was appropriate. I adjourned the matter for a sentence hearing on 11 September 2020.
On that date I received the Intensive Correction Order Assessment. You were assessed as suitable for such an Order. I heard evidence from your aunt and I received a number of documents in your case in mitigation, including a report from psychologist Dr Danielle Clout.

I will now turn to the facts. In my judgment of 8 July 2020, I stated that I am satisfied beyond reasonable doubt that the events of the early morning of 3 June 2018 occurred as the victim described them: see R v Versteeg [2020] ATSC 180. I set out the victim’s evidence of those events at paragraphs [8] through to [18] of that judgment.
As I said at that time, I am satisfied that the victim came to your house in the early hours of 3 June 2018, having driven from Newcastle in New South Wales. She showered and then put on the same clothes she had arrived in. The two of you sat on your bed to watch a movie. There was some consensual sexual activity in which you began touching the victim’s breasts over the top of her clothing. However the victim had previously made it clear to you that she was not willing to engage in sexual intercourse with you at that time.
You then rolled the victim onto her stomach while she was on your bed and started pulling her clothing down. You pulled her leggings down despite her physical attempts to stop you and her verbal indications that you should stop and that she did not want to engage in sexual intercourse. You then placed your erect penis into her vagina, causing her pain. The victim said “ow” loudly, clearly indicating that she was in pain. You continued to thrust your penis into her vagina despite her indications that she did not want to engage in sexual intercourse.
As I said on 8 July 2020, I am unable to find beyond reasonable doubt for how long this occurred or how deeply your penis penetrated her vagina but I am satisfied that it was for a longer period and a deeper penetration than you admitted in your evidence. Your assault on the victim continued until she bit you on your shoulder. These were the facts in relation to the charge of engaging in sexual intercourse without consent.
About two hours after the first offence, the victim decided to leave your premises. She got out of bed and changed out of her pyjamas. She made it clear that she wanted to leave and that she did not want to spend the day with you, which had previously been proposed. You grabbed her hand and placed it on your penis outside your boxer shorts. Your penis was semi-erect. You asked her to rub your penis. This made her very angry and she pulled her hand away and she left the house. These facts are the basis of the charge of committing an act of indecency without consent.

In assessing the objective seriousness of the charge of sexual intercourse without consent, I accept that the offence was not planned or premeditated. While I cannot find for certain how long your attack on the victim continued, I am satisfied that it was not particularly lengthy. I am satisfied that the victim told you on multiple occasions during your attack that she did not want to engage in sexual intercourse with you.
You did not use a condom even though you knew that the victim was concerned about the possibility of contracting a sexually transmitted disease. You did not ejaculate, meaning that the risk of pregnancy and perhaps of sexually transmitted disease was lessened. The offence also involved a degree of physical forcefulness in which the victim was restrained and her clothing removed so that you could engage in sexual intercourse with her.
Turning to the offence of committing an act of indecency without consent, in assessing the objective seriousness of this offence I take into account that it occurred some hours after the offence of engaging in sexual intercourse without consent and at a time when you had had plenty of time to consider what you had done in the earlier offence and the victim’s reaction to that.
Despite the fact that the victim had made it clear that she was not interested in engaging in sexual activity with you, you persisted in trying to engage her in that activity. On the face of it, each offence involved you ignoring the clear messages from the victim that she was not willing to engage in, with regard to the first offence of sexual intercourse or, with regard to the second offence, any sort of sexual activity with you. Your conduct speaks of an attitude of entitlement in which you were not prepared to acknowledge the right of the victim to determine whether she wanted to engage in sexual activity.
On the face of it, each of these offences is a serious example of the respective type of offending. Before determining the objective seriousness of each of the offences, however, I must consider whether the evidence put before me concerning your mental state at the time should result in a lessening of your moral culpability for these offences.

A report dated 4 September 2020 from Dr Clout, a clinical psychologist, was tendered on your behalf. Dr Clout was not required for cross-examination. I accept, based on Dr Clout's report, that you have Attention Deficit Hyperactivity Disorder (ADHD) with symptoms in the severe range and that at the time of these offences you were regularly using cannabis.
On the balance of probabilities, I am satisfied that your cannabis use was associated with your ADHD. Your ADHD has associated features such as reduced behavioural control and constraint, emotional lability and low frustration tolerance, and increased sensation-seeking behaviours.
Dr Clout states that you appear to have significant impairments in aspects of your executive functioning including your planning, judgement, and decision making, and with your ability to anticipate consequences and learn from your behaviour. You also struggle to manage your impulses and your capacity to regulate and control your behaviour is underdeveloped.
These findings set out what might be referred to as the baseline of your mental functioning. By itself, however, the fact that you have ADHD with the symptoms that Dr Clout describes does not reduce your moral culpability for these offences.
In order to reduce your moral culpability, any mental disorder or impairment from which you suffer must be shown to have contributed to the commission of the offences. This requires an examination of the extent to which the mental impairment identified by Dr Clout contributed to the precise acts which constitute the offences.
Amongst the material provided to Dr Clout for the purposes of providing her opinions was a document entitled “Statement of Facts”. It is not clear which Statement of Facts this was, but I will assume for present purposes that it was a copy of the Statement of Facts which included the facts that you disputed. Although Dr Clout assessed you on 6 August 2020 and her report is dated 4 September 2020, she does not appear to have been provided with a copy of my judgment of 8 July 2020 in which I set out my findings of fact.
Under the heading, “Attitude towards the charges”, Dr Clout said that you expressed feeling “heartbroken” that “someone would say something like that” about you, referring to the victim's statement to the police. You denied aspects of the victim's account and said that you did not feel that it was “as big a deal as what is being made out” as you “just pressed against her”.
The version of events given by you to Dr Clout greatly minimises the physical actions you engaged in and which constitute the offence of engaging in sexual intercourse without consent. The version of events which you gave to Dr Clout was of momentary contact between your penis and the outside of the victim’s vagina in the context of the victim having gone beyond the boundaries that she had earlier set by engaging in oral sexual intercourse with you.
On the face of her report, it appears that Dr Clout accepted your version of events for the purpose of preparation of her report. This is because she notes that after you had given your version that you had just pressed against the victim, she asked you why you would do that. In any event, it is at best unclear to what extent Dr Clout based her opinions on the facts which have been found to be proven as opposed to the version of events which you provided to her.
In her report, Dr Clout speaks generally of the effects of ADHD and cannabis use on the mental functioning of an individual. She extrapolates from these general propositions to formulate opinions as to how these conditions may have affected you at the time of these offences. Dr Clout also had the benefit of a history, including a developmental history, which undoubtedly assisted her in formulating her opinions.
The opinions expressed by Dr Clout may be summarised as follows. You knew that what you were doing was wrong but your ADHD and associated cannabis use reduced your capacity to regulate and inhibit your responses. These conditions also likely reduced your capacity to exercise appropriate control. The extent to which these conditions reduce your moral culpability for these particular offences is problematic.
Dr Clout makes no attempt to relate her opinions about the effect of these conditions back to the facts regarding the offences. No attempt is made to reconcile the evidence that the victim made multiple clear statements that she was not consenting to sexual intercourse, with Dr Clout's opinion that your symptoms, including an impaired capacity to control your urges, in conjunction with problematic beliefs around consent and relationships, are likely to have significantly contributed to your offending behaviour.
Similarly, no attempt has been made to reconcile the evidence that you physically flipped the victim over onto her stomach and pulled down her clothing, despite her verbal and physical attempts to make you stop, with Dr Clout's opinion that your symptoms are likely to have significantly contributed to your offending conduct.
I will also add that Dr Clout has not made any attempt to disentangle the causative effects of the symptoms of your ADHD and cannabis use on your offending behaviour from the effect of your problematic beliefs around consent and relationships.
I accept that you suffer from ADHD and on the balance of probabilities that your use of cannabis was causally connected with your ADHD. I accept that ADHD and the use of cannabis are generally connected with a range of impairments in thought processing, judgement, and behaviour.
I accept that at the time of these offences, it is probable that your drug use exacerbated pre-existing impairments in your cognitive processes and impulse control and that these may have contributed to some degree to your offending behaviour in the sense that they were persistent matters that affected your underlying cognitive function.
I am not however persuaded by Dr Clout's report that your ADHD and associated cannabis use contributed to your offending behaviour to the extent that calls for significant moderation of your moral culpability. In my opinion, your moral culpability with respect to these offences remains high.

You are currently 30 years old and you were 27 years old at the time of these offences. You have a criminal history for traffic offences which are not particularly relevant in sentencing you for the present offences. You have previously been supervised by ACT Corrective Services and your compliance was satisfactory to the extent that the supervision component of the sentence that you were then serving was early terminated. At that time, you were assessed as a low risk of general re-offending.
You have been supervised on a bail order since July 2019 and your compliance has been generally satisfactory. During the eight-week Intensive Correction Order Assessment period, you demonstrated a positive and engaging attitude at all interviews. You undertook urinalysis testing on two occasions, both returning negative results for any intoxicating substances. You previously returned negative results to urinalysis testing in September 2019, and January 2020.
You were born and raised in the ACT. You described your upbringing as positive and family-focused. You were raised by your mother and step-father alongside your half-sister. You continue to enjoy the benefits of a strong family unit. You have been residing in the family home with your parents and sister since July 2020 after moving out of a share house. The Intensive Correction Order Assessment indicates that you moved out of that share house to remove any possible antisocial influence or temptation to abuse alcohol or drugs.
You have been raised by your step-father since you were approximately 13 months of age and you have little contact with your biological father. You are currently single.
You left school after completing Year 10 and commenced, but did not complete, an apprenticeship as a mechanic. You have subsequently held multiple positions in various industries. Most recently, you have been employed at a construction company. I understand that employment continues to be available to you. The material tendered at your sentence hearing establishes that you are well regarded and are considered to be a hardworking employee.
You first commenced cannabis use when you were 18 years of age and your use of that substance escalated over time. You ceased using cannabis approximately two years ago. You first consumed alcohol when you were 15 years old and you engaged in binge drinking until you were approximately 21 years old. You have abstained from alcohol use since July 2019.
The Intensive Correction Order Assessment notes your intermittent use of medication to assist with the symptoms of ADHD. At the time of the present offences, you were not taking that medication. You were apparently appropriately medicated during your primary school years but your parents found it difficult to persuade you to consistently take the medication in high school and beyond. Undoubtedly regaining control of your ADHD is in your best interests.

I take into account the testimonials tendered on your behalf and the evidence given by your aunt. They speak of the fact that these offences are out of character for you. They also speak of the respect that you ordinarily display towards women, which suggests that your ADHD, ever present as it is, cannot of itself explain these offences.
You have shown limited contrition for these offences. I accept that you have expressed remorse to your family but that appears to be based on the version of events that I have rejected. You have attempted to minimise your conduct and the depth of your offending even after your interview with Dr Clout which occurred after I had published my judgment on 8 July 2020.
Due to your unwillingness to be entirely truthful, the victim was required to give evidence and be cross-examined. Your failure to be entirely honest reduces my confidence that you will not re-offend. You have many protective factors which will assist with your rehabilitation such as family support and employment, but you also need to totally and honestly examine your attitudes and thinking regarding relationships and consent. I am not sure to what extent you currently have any commitment to do that.
Your pleas of guilty came very late and the utilitarian value of the pleas was eroded by your dispute about the facts which required a hearing to resolve. I accept that your pleas still had some utilitarian value and I will reduce the otherwise appropriate sentences by approximately five per cent because of your pleas of guilty. Had you entered early pleas of guilty, you could have expected a reduction in sentence of about 25 per cent.
I was provided with a range of previous cases in which sentences were passed for similar offending. They provide useful information, but they do not set the outer limits of appropriate sentences for these offences.
As was properly conceded by your counsel, the present offending calls for the imposition of terms of imprisonment. The submission made on your behalf is that the requirements of sentencing will be satisfied if I impose sentences of imprisonment to be served by way of an Intensive Correction Order. Such a disposition involves no immediate full-time period of imprisonment and as such involves considerable leniency compared to full-time imprisonment.
It is important to consider each of the maximum penalties prescribed for these offences, as the maximum penalty sets a yardstick by reference to which sentences for offences which do not fall into the worst category may be assessed. The maximum penalty also indicates how seriously the legislature on behalf of the community views a particular type of offence.
The maximum penalty of 12 years' imprisonment for the offence of engaging in sexual intercourse without consent, contrary to s 54(1) of the Crimes Act, demonstrates that such offences are viewed as particularly serious by the community. The maximum penalty of seven years' imprisonment for the offence of committing an act of indecency without consent, contrary to s 60(1) of the Crimes Act, is somewhat less but it is still indicative of serious criminal offending.
Sentences for sexual offending must always contain a strong element of general deterrence. Those who would commit such offences must know that real and substantial penalties will follow from a conviction. Usually this will require a sentence of imprisonment to be imposed, some part of which is to be served by full-time imprisonment.
In some cases, deterrence of the individual offender may not assume significance, particularly in cases where there has been true remorse demonstrated such that the Court can have confidence that the offender is unlikely to re-offend.
In your case, your continuing minimisation of your actions and refusal to acknowledge the gravity of the offences means that individual deterrence is a relevant sentencing consideration.
In sentencing you, it is also necessary to recognise the harm that you have done to the victim and to the community. Although you have been assessed as suitable for an Intensive Correction Order, in my opinion, such a disposition would not be adequate to reflect the seriousness of the offending and the harm done to the victim and to deter you and others from committing offences of this nature. In my opinion, a sentence involving a period of full-time imprisonment is the only sentence that satisfies the requirements of sentencing.
I will take into account that this will be your first sentence of imprisonment and that you have prospects for rehabilitation. I will suspend the aggregate sentence of imprisonment that I propose to pass after a minimum period consistent with the gravity of these offences.

R v Versteeg

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